Commonwealth v. Claudio

• Decision Date: 25 January 2013
• Docket Number: No. 11–P–909.,11–P–909.
• Citation: 981 N.E.2d 234,83 Mass.App.Ct. 1108
• Parties: COMMONWEALTH v. Pedro CLAUDIO, Jr.
• Court: Appeals Court of Massachusetts

83 Mass.App.Ct. 1108
981 N.E.2d 234

COMMONWEALTH
v.
Pedro CLAUDIO, Jr.

No. 11–P–909.

Appeals Court of Massachusetts.

Jan. 25, 2013.

By the Court (VUONO, GRAINGER & WOLOHOJIAN, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals the denial of his postconviction motion to withdraw guilty pleas,¹ properly treated as a motion for new trial. Commonwealth v. Balliro, 437 Mass. 163, 166 (2002). He argues that he was incompetent when he tendered his plea to charges of murder in the second degree and breaking and entering a dwelling house while armed with intent to commit a felony, and that he received ineffective assistance of counsel.² We affirm. We note as an initial matter that the arguments raised by the defendant have been waived. This is the defendant's third motion raising the same issues. See Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001); Commonwealth v. Pisa, 384 Mass. 362, 366 (1981). Even if the same arguments had not been raised previously, they still would be waived because the defendant could have raised, but did not raise, them in his first motion for new trial. Commonwealth v. Randolph, 438 Mass. 290, 293 (2002).

Although the arguments are waived, we nonetheless will grant relief if the claimed errors create a substantial risk of miscarriage of justice.³Id. at 294. Here, there was no error because the judge did not abuse his discretion in denying the motion and, therefore, there was no substantial risk of a miscarriage of justice. Commonwealth v. Grace, 397 Mass. 303, 307 (1986). The motion judge (who was also the plea judge) was entitled to rely on the transcript of the plea proceedings, as well as his own memory of them. Commonwealth v. Garvin, 456 Mass. 778, 799–800 (2010). The transcript reflects that the defendant understood the consequences and ramifications of his plea, and was able to consult with his lawyer.⁴ In fact, the defendant consulted with his lawyer (with the judge's leave) when he indicated that he did not fully understand the mechanics of his Alford plea. See North Carolina v. Alford, 400 U.S. 25 (1970). The defendant and his attorney both represented that the defendant's mental condition was under control and he was being appropriately medicated. See Commonwealth v. Robbins, 431 Mass. 442, 448–449 (2000). All aspects of the plea proceedings are consistent with the conclusion that the defendant entered into the plea knowingly and willingly. Nothing in the record would suggest that the...